Fears of employees include not only contracting COVID-19, but also spreading the disease to family members. But aside from the obvious health risks of the deadly disease, there is the domino effect of the economic impact. By contracting and/or spreading COVID-19, this will heighten the curve and lessen the likeliness of restrictions being lifted from quarantine, such as reopening businesses. And further, if the curve reverses and goes back up, restrictions already lifted may be reinstated, such as shutting back down businesses or schools that were previously allowed to reopen.
So despite having legitimate fears of returning to work, can an employee simply refuse to work? Generally, there is no U.S. employment law that gives an employee the right to simply refuse to work. However, like all other areas of law, there are exceptions and caveats to this general rule that depend on more specific factual scenarios and variations that bring other legal rights into play. The prominent laws in these regards are found in:
• Federal Occupational Safety and Health Act;
• Federal Americans with Disability Act;
• Federal Families First Coronavirus Response Act;
• State and/or Local Leave Laws;
• State Unemployment Laws;
• Employer Policies.
To assist an employer in reducing the risk and liability, you must first look at workplace safety considerations and the Occupational Safety and Health Act. An otherwise healthy employee can only refuse to return to work, as a last resort, if they establish several very factual elements. All of the following must be met:
• The employer is aware of a safety hazard and has failed to eliminate that hazard;
• The employee believes in “good faith” that an imminent danger exists;
• A “reasonable” person would agree that there is a “real danger” of death or serious injury; AND
• There is no time to get the hazard corrected through the appropriate channels, such as through OSHA inspections.
What can an employer do? Start by implementing best practices and steps such as:
• Assess Risk Level (suggest review of OSHA 3990-03 “Coronavirus: Guidance on Preparing Workplaces for COVID-19);
• Require and Train on Proper Sanitation and Hygiene;
• Assess, Provide, and Train on Proper PPE (Personal Protective Equipment);
• Assess and Implement Administrative Controls;
• Assess and Implement Engineering Controls;
• Investigate and Address Internal Complaints;
• Document, Document, Document (e.g. Don’t just tell your employees to wash their hands and wear masks, document all efforts that you have done so).
With COVID-19, there are several “disabilities” that make individuals more at-risk and if acquired, COVID-19 is much more serious, possibly deadly. Regarding workers who already have these disabilities that may need special accommodations, there are two sources to review from the Equal Employment Opportunity Commission (EEOC), found at eeoc.gov/coronavirus/:
• Pandemic Preparedness in the Workplace and the Americans with Disabilities Act; and
• What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC laws.
Though some disabilities are more obvious, there are others that would normally not be identified by individuals in general or especially to their employer. These would include conditions such as Asthma, Diabetes, Heart-related conditions, Generalized Anxiety Disorder, or Agoraphobia, to name a few. Though you cannot ask a worker about conditions, you can ask about symptoms or restrictions. You must engage in interactive dialogue. And you should ask for a doctor’s note that outlines any restrictions. Then, you can accommodate if reasonable and not causing undue hardship.
An employer must also realize that fear is at an all-time high. While you may have employees who try to take advantage by asking for unnecessary or unreasonable accommodations, many employees will have legitimate fears. Communication becomes very important. Make sure there is active communication at all levels.
To try and bring it all together, imagine a scenario where you have an employee with documented diagnoses of asthma and anxiety. His asthma doctor tells him it is unsafe to wear a mask for prolonged periods of time, while his anxiety prevents him from working effectively in his cubicle without wearing his mask, even with screens added to the partitions. Open communication and interactive dialogue, to include input from his doctor(s), may conclude with that individual being relocated to the last cubicle in the corner with the immediate surrounding cubicles going unoccupied. With the extra distance between him and his coworkers, his anxiety is not activated by taking off his mask at his desk.
In conclusion, we all must realize these times are unprecedented. You must be understanding with your workers and try to work with them as best you can. This involves open communication. You will likely need to be flexible and possibly creative with accommodations. You must review all government guidelines, even those not actually placed into law. And for your protection, Document, Document, Document.
(Nearly all factual information above learned from the Webinar, “My State Is Reopening, But My Employees Are Afraid of COVID-19: What Should I Do?”, by Taylor White of Foley & Lardner LLP, August 21, 2020)